A Close Look into the Mind of English Law’s Most Influential Judge: Lord A.T. Denning (1899-1999)

By Yaiman Bande.

(An audio version of this article is also available, click here )

Introduction

The Judiciary is one of the three arms of Government that ensure that the rule of law is enforced and respected. Unlike the Executive, it achieves this goal by giving an interpretation of laws and rendering judgments that send echoes to all four corners of society. Judges sit at the centre of this complex task and often work tirelessly in search of justice. To fully appreciate the minds of these god-like men, this article will focus on perhaps the most influential English Judge of the 20th Century: Alfred T. Denning (Lord Denning). Most of the discourse will focus on his judgments in light of his personal characteristics and upbringing.

Origins

Lord Denning was born on 23rd January 1899 to a well-respected family in England. He was the fourth son (and fifth child) to Clara and Charles Denning. He described his father as a ‘singer, poet and dreamer.’[1] Perhaps due to this, his father lacked good business skills and at times, the family was financially at dire straits. It is very likely that Denning was influenced more by his mother than his father. He once described his mother as ‘very intelligent, very hardworking and determined to succeed at whatever she undertook.’[2] This fact seems to have left an imprint on him: It was reported that from a young age, he showed a very strong work ethic and a profound respect for hard work.[3]

Quite surprisingly, Lord Denning had grown up in unfavourable circumstances compared to his counterparts on the bench: His home in Whitchurch had no mains water, electricity or proper sewerage. [4] This falls pale in contrast with his colleagues such as Lord Goddard who was the son of a solicitor and was born into a very fashionable area in England,[5] and also Lord Devlin who was the child of a very successful architect. [6] It would not be a stretch to speculate that perhaps Denning’s humble beginnings played a huge role in his judgments. This is particularly evident by his support for the weak in society i.e. the ‘little man’.[7]

Sense of Justice

The great English Poet William Shakespeare, in one of his plays once said: ‘This above all, to thine ownself be true ... and it must follow, as the night the day, thou canst not then be false to any man.’[8]The teaching behind this ancient but yet potent quote is that men should be free to hear the viewpoints of others, but at the same time be independent enough to dissent where necessary. By all means, Denning was not shy of the truth behind this statement.  As the case of Central London Property Trust ltd v High Trees House (1947) showed, he was inclined to find old, if not forgotten, laws that would support his position in equity. This was to the extent that the law in question did not offend his sense of justice. For example, in the High Trees case mentioned earlier, he completely disregarded the arguments of counsel on either side and resurrected the long neglected Hughes v Metropolitan Ry Co[9] to argue that ‘promises intended to be binding, intended to be acted on, and in fact acted on’ are binding ‘in equity’ so that the person making such a promise is not allowed to act inconsistently with it (estoppel). With this understanding, it is clear that he perceived the law to be a shield of justice which should be kept up to date with the contemporary needs of the common man.

So then what is a just outcome? In today’s fast-paced world, the idea of justice seems to be as illusive in substance as it is in definition. It is safe to say that drawing from his vast legal knowledge, Lord Denning had a good idea of what ‘justice’ might be. Almost in the words of a Jewish prophet, he once said: “So I ask you to accept with me that law is concerned with justice and that religion is concerned with justice. And thence I asked the question - what is justice? That question has been asked by many men far wiser than you or I and no one has yet found a satisfactory answer. All I would suggest is that justice is not something you can see. It is not temporal but eternal. How does one know what is justice? It is not the product of his intellect but of his spirit. Religion concerns the spirit in man whereby he is able to recognise what is justice, whereas law is only the application, however imperfectly, of justice in our everyday affairs. If religion perishes in the land, truth and justice will also. We have already strayed too far from the faith of our fathers. Let us return to it, for it is the only thing that can save us.” The significance of this quote is that it shows yet another aspect to Denning’s sense of justice; an aspect that is deeply rooted in Christian philosophy. However, that of itself, cannot explain his independent thought process because his colleagues on the bench equally professed the same faith. Hence, it appears that it is necessary to look elsewhere.

Precedent

Precedent is, to many, the bedrock of sound judicial reasoning. It stands as the hallmark of solidarity between judges, transcending time and respecting legal tradition. As Lord Simonds put it in Midland Silicones Ltd v Scruttons Ltd,[10] with words of reprimand to Lord Denning’s approach to precedent: ‘The Law is developed by the application of old principles to new circumstances. Therein lies its genius.’ Indeed, principles never change and that is more so true for inanimate objects such as machines. However, human problems, unlike mechanical problems, have no precise mathematical formula: What is just for the goose may be labelled an ‘unspeakable’ evil by the gander.

From Denning’s point of view, precedent was necessary only to the extent that it does not act as an obstacle to justice. This was clearly demonstrated by a dissenting judgment he made in London Transport Executive v Betts (Valuation Officer). [11] In that case, the House of Lords was tasked with interpreting what exactly ‘maintenance’ meant for the purposes of section 3(2) (b) of the Rating and Valuation (Apportionment) Act, 1928. The majority took the view that was taken in Potteries Electric Traction Co Ltd v Bailey (Stoke-on-Trent Revenue Officer)[12]; a view which Denning frowned upon due to its indifferent nature. To him, attaching a meaning to the word ‘maintenance’ as the majority had done would have led to an absurdity in the statute .i.e. something that parliament clearly did not intend.

In his concluding remarks, he gracefully said that, “It seems to me that when a particular precedent comes into conflict with a fundamental principle—also of your Lordships’ House, then the fundamental principle must prevail. This must at least be true when, on the one hand, the particular precedent leads to absurdity or injustice and, on the other hand, the fundamental principle leads to consistency and fairness. It would, I think, be a great mistake to cling too closely to particular precedent at the expense of fundamental principle.” Even more bluntly, he once said in Ostime v Australian Mutual Provident Society[13] that, ‘the doctrine of precedent does not compel your Lordships to follow the wrong path until you fall over to the edge of the cliff.’ These two cases reveal that Denning’s primary concern was serving the ends of justice. Judicial precedent, in so much as it was valid, was only a guide to assist the prudent judge in arriving at a just outcome. This is not to say that he had no respect for the principle of Stare Decisis. However, it does show that he was more ready to abandon precedent than his counterparts in situations of legal uncertainty where application of strict law would lead to an unjust outcome. [14]

Influence of his early career and self-demotion from the House of Lords

After serving in the military as a Second Lieutenant in the First World War, Denning initially pursued a career in mathematics. Although he graduated and actually worked at it for a while, he did not like the job. So he returned to Oxford and enrolled in the school of law. He wasn’t particularly social at Oxford.[15] However, he did manage to top his bar examinations in 1923.[16]

In his early years at the bar, he helped edit Smith’s Leading Cases, which was a book containing a selection of leading cases with essential commentaries. This work allowed him to have an almost encyclopaedic knowledge of cases. Interestingly enough, he attributed most of the law he ever knew to his work with Smith’s Leading Cases.[17] As the High Trees Case shows, he had a tendency of bringing out cases from his knowledge rather than depending on those which counsel had argued. No doubt this ability was attributed to his days editing Smith’s Leading Cases. In justifying the reasoning for this behaviour, he once wrote: ‘Thus rebuked, I may as well make a confession. On many occasions I have done my own researches and given an opinion on matters on which the court has not had the benefit of the arguments of counsel, or of the judgment of the court below. I have done this because counsel vary much in their ability and I do not think that their clients should suffer by any oversight or mistake of counsel...’[18]

This viewpoint is quite fascinating and one wonders how Lord Denning would have decided the case of Mwewa Murono v The People[19]. In that case, the prosecution had failed to produce the confession statement made by the accused to the police and also, the court entirely refused to admit the prosecution witnesses’ hearsay statements as res gestae. It creates much food for thought: If Lord Denning was presented with the same facts as Mwewa Murono, could he have asked more questions about the demeanour of the deceased or rather found a way to ignore the oversight and mistake by prosecution counsel?[20] Unfortunately, the answer to that question cannot easily be made out. Save to say that it cannot be a stretch to assume that he would have vehemently aired out his discontent with the prosecution.

Lastly, Lord Denning’s self-demotion from the House of Lords must now be considered. What is interesting about his time in the House of Lords is that both his first and last judgment was a dissenting one.[21] It begs the obvious question of why? In his own words, he said: ‘Many a time I have been asked, why did you step down from the House of Lords? My answer is: I was too often in a minority. In the Lords, it is no good to dissent...’ [22]Another clue to this bizarre behaviour was a comment he made saying: ‘to most lawyers on the bench the House of Lords is like heaven-you want to get there someday-but not while there is any life in you.’[23] From the research and reading conducted, it would not be farfetched to say that the reason why Denning opted for a position in the Court of Appeal as Master of the Rolls is because it gave him greater chances of not being in the minority when deciding certain cases. Hence, it gave him greater control of deciding which cases he heard. Moreover, as Master of the Rolls, he was better placed to influence and develop the law. This may also be coupled with the fact that not every case in the Court of Appeal made it to the House of Lords.

Conclusion

The twentieth century was a time of scientific innovation and ingenuity. It graced the world with men of impressive intellectual abilities. There is no doubt that Alfred Tom Denning’s name stands out on that list; perhaps not as an Albert Einstein or Thomas Edison, but nonetheless as a genius of social justice in his own right. In a nutshell, his approach to judicial activism was born from a passionate drive for justice. It seems that frame of mind guided his judgments throughout his extensive legal career. The world of judges, lawyers and legal scholars will forever remain indebted to him; undoubtedly, a debt which will remain unpaid for years to come.

[1] The Family Story p.13

[2] Lord Denning, A life Iris Freeman, Arrow Books London 1994 at p.15

[3] Curley, Sean (2016) Lord Denning: Towards a theory of adjudication. An examination of the judicial decision making process of Lord Denning and his creation and use of the interstitial spaces within the law and legal process to assist in the exercise of his discretion and an examination of those factors which influenced that discretion. Doctoral thesis, University of Huddersfield. At p 18

[4] Ibid

[5] Lord Goddad, A Biography (Fenton Bressler, Harrap London 1977)at p6

[6] ODNB Tony Honore OUP 2004

[7] see George Mitchell ltd v Finney Lock Seedy Ltd 1 ALL ER 1983

[8] Act I, Scene 3 of Hamlet

[9] [1877] 2 App Cas 439

[10] [1962] AC 446

[11] [1959] A.C. 213

[12] [1931] AC 151

[13] (1960) A.C.459

[14] See page 292 Discipline of the Law

[15] n(3) at p.27

[16] Ibid (29)

[17] The Family Story p 94

[18] Lord Denning MR, Discipline of the Law, (Oxford University Press)289

[19] (2004) Z.R.207

[20] In an Article about Hearsay and Res Gestae statements (available here), it was argued that the Court used the wrong test in dismissing the deceased’s statements. (i.e. the Article argues admissibility and not the credibility of the witnesses, which is a different issue altogether)

[21] n(18) at p. 290

[22] Ibid (287)

[23] E Heward, Lord Denning: A Biography, (Barry Rose Law Publishers 1997)89